Peters and Ashwood

[2017] FamCA 1166

FAMILY COURT OF AUSTRALIA

PETERS & ASHWOOD [2017] FamCA 1166

FAMILY LAW – CHILDREN – where the father seeks a reinstatement of his time with the child in accordance with final consent orders – where the child has not spent time with the father since June this year – orders reinstating the time the child spends with the father.

Family Law Act 1975 (Cth)

APPLICANT: Mr Peters

RESPONDENT: Ms Ashwood

FILE NUMBER: MLC 10556 of 2011

DATE DELIVERED: 6 December 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 6 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Paterson

SOLICITOR FOR THE APPLICANT: Perry Weston Lawyers

COUNSEL FOR THE RESPONDENT: Mr Zhon

SOLICITOR FOR THE RESPONDENT: Pentana Stanton Lawyers

Orders

1. Order 4 of the Final Parenting Orders dated 20 March 2017 be varied to provide as follows:

   (a)The time provided for at order 4(a)(ii) be for two hours each alternate Friday after school;

   (b)The time provided for at Order 4 (b) occur from the date of these orders to 28 January 2018;

   (c)The time provided for at order 4(g)(i) be suspended for 2017 only and in lieu thereof the child spend time with the father from 10.00 a.m. to 2.00 p.m. on Christmas Eve or for such other four hour period on that day as directed by F Family Services;

   (d)The time provided for at Order 4(c) occur from 29 January 2018 to 4 March 2018;

   (e)The time provided for at Order 4(d) occur from 5 March 2018 to 8 April 2018.

   (f)The time provided for at order 4(e) occur four 9 April 2018 to 14 May 2018;

   (g)       The time provided for at order 4(f) occur from 15 May 2017 onwards.

2. The Final Parenting Orders dated 20 March 2017 otherwise remain in full force and effect.

3. All extant applications be otherwise dismissed.

4. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peters & Ashwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10556 of 2011

Mr Peters

Applicant

And

Ms Ashwood

Respondent

REASONS FOR JUDGMENT

1. The matter of Ashwood & Peters comes before me today in a Judicial Duty List, upon two applications filed on behalf of the father.  Firstly, an Application - Contravention, which was filed on 10 October 2017 and, further, an Application in a Case, filed on his behalf, on 27 October 2017.  The applications relate to orders that were made, by consent by me, in the context of a final hearing on 20 March 2017.  At that time, both the mother and the father were represented and there was an Independent Children’s Lawyer engaged to represent the interests of the child, the subject of the proceedings, that is, B, who was born in 2010, and is now aged seven years.

2. Paragraph 4 of the orders made on 20 March 2017 made provision for the child to spend time and communicate with the father on a gradually increasing basis.  It is common ground between the parties that, notwithstanding those orders, there has been an interruption to the father’s time.  He comes to Court today not having spent time with the child since June of this year.  Notwithstanding the fact that, in his Application in a Case, he has sought an order for a change of the child’s living arrangements, that is not an application that is pressed by him today.  I also note that he does not seek to proceed with his contravention application, and that is an application that he has sought leave to withdraw.  That application, is not opposed.

3. What is sought by the father is a reinstatement of his time, in accordance with the orders that the parties agreed to, in the context of the final hearing.  The mother agrees that the time should resume and she largely agrees with the father’s proposal as to how that should occur.  The only matters in dispute are, firstly, whether the alternate week afternoon time should be on a Friday after school, or some other day of the week.  Secondly, there is a dispute as to the identity of the family supervisors, as set out in paragraph 5 of the consent orders.

4. The submissions made on behalf of the mother, in relation to the question of what day of the week the afternoon time should occur, can be summarised as follows.  It is submitted that the mother has enrolled the child in private swimming lessons.  Those swimming lessons occur on a Friday afternoon.  The mother and the maternal grandmother are otherwise engaged in employment, on Monday to Thursday afternoons, and there is no other afternoon during the week where the child could attend those private swimming lessons.  On that basis it is said that the time should occur on either Tuesday or Wednesday, rather than the Friday afternoon.

5. The submissions on behalf of the father in relation to that issue are that Friday afternoon was an afternoon contemplated in the orders made in March 2017, particularly paragraph 4(a)(ii) which provides as follows: 

   that the child spend time and communicate with the father until 1 May 2017, one evening each alternate week, for two hours, at times and places as directed by and under the supervision of C Family Service (if possible, a Friday). 

6. Clearly, at the time that those orders were agreed to, which was in March of this year, private swimming lessons were not a feature of the child’s life and were not an activity that would cause any difficulty with the father spending time on Friday afternoon.

7. Further, I am referred to, and the father relies upon, the correspondence passing between the supervision service, that is, F Family Care, and the parties, regarding arrangements for the afternoon time.  That correspondence is Annexure AP1 to the affidavit of the father, filed 10 October 2017.  It is evident from that correspondence that the parties have negotiated on the basis that the afternoon time occur on Friday afternoons.  It is referred to clearly by Ms F in that correspondence. 

8. Having regard to that evidence, and the form of the orders made by consent, in March 2017, I consider that the appropriate order is that the time provided for, in paragraph 1(a) of the proposed consent order, should occur each alternate Friday after school.  I consider that, in circumstances where the supervision service is known to be available on that afternoon, that that is the appropriate day on which that time should occur.

9. Turning to the second issue, which is the question of identity of the family supervisors, paragraph 5 of the consent orders provides that, for the purpose of order 4, family supervisors include three named persons or, such other person as agreed between the parties, or as approved by Ms J. 

10. The mother’s solicitor today sought to make submissions that some of the people named at paragraph 5 are inappropriate and, in support of that submission, sought to rely upon affidavits filed in 2013.  That material was properly before the Court at the time that the final orders were made by consent.  They were matters taken into account and considered and, ultimately, the parties agreed upon those named supervisors, notwithstanding matters that were the subject of complaint at an earlier time in these proceedings.

11. In circumstances where there is no further evidence adduced as to any reason why those supervisors should not continue in that role,  I am satisfied that there should be no order that varies or otherwise changes the orders that were consented to by these parties, on 20 March 2017. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 6 December 2017.

Associate: 

Date:  6 December 2017